News and developments on Freedom of Information in the UK. This blog is run by the Campaign for Freedom of Information. It was established in May 2003 by Steve Wood, who ran it until the end of February 2007 when he took up the post of Assistant Commissioner at the Information Commissioner's Office.

Tuesday, December 22, 2009

Christopher Graham, the Information Commissioner, has used his powers to secure improvements in the way two public bodies conduct internal reviews under the Freedom of Information Act. In line with the Information Commissioner’s enforcement strategy, Christopher Graham has issued practice recommendations to the UK Border Agency (UKBA) and Cardiff County Council. Both authorities have repeatedly failed to comply with the timescales for responding to requests for internal reviews set out in the Code of Practice and the Commissioner’s guidance.

The Information Commissioner has issued a practice recommendation to Cardiff County Council after it repeatedly failed to conduct internal reviews promptly. The Information Commissioner’s Office (ICO) found evidence which showed a number of internal reviews appeared incomplete despite being open for over two years. The recommended period of time for completing an internal review is 20 working days or 40 days in exceptional cases. In no instance should the time taken to conduct a review exceed 40 working days....The Information Commissioner has also issued a practice recommendation to UKBA after it failed numerous times to conduct internal reviews. Following complaints to the ICO, UKBA confirmed that during the period 21 January 2007 to 21 July 2008, only 17 of 46 internal review decisions had been completed within 40 working days. During the period of 1 August 2008 to 31 January 2009 only 10% were completed within 20 working days and 57% of reviews took in excess of 40 working days to complete. Prior to serving this practice recommendation the ICO monitored UKBA’s handling of internal reviews. Despite some progress, UKBA has still been failing to meet the Information Commissioner’s recommended targets.

Monday, December 21, 2009

Secret correspondence between the Government and Buckingham Palace concerning the growing public cost of the Royal Family is to be released to The Independent after three years of campaigning.

In a far-reaching ruling, the Government must disclose more than 100 letters and memos written by ministers and members of the Royal Household during negotiations over public subsidies paid to the Queen for the upkeep of her palaces.

The Information Commissioner's decision deals a severe blow to the Royal Family's efforts to ensure correspondence between the Palace and the Government is not caught by the public's right-to-know law. Royal aides warned ministers that they did not want the letters disclosed to The Independent.

Secret correspondence between the Government and Buckingham Palace concerning the growing public cost of the Royal Family is to be released to The Independent after three years of campaigning.

In a far-reaching ruling, the Government must disclose more than 100 letters and memos written by ministers and members of the Royal Household during negotiations over public subsidies paid to the Queen for the upkeep of her palaces.

The Information Commissioner's decision deals a severe blow to the Royal Family's efforts to ensure correspondence between the Palace and the Government is not caught by the public's right-to-know law. Royal aides warned ministers that they did not want the letters disclosed to The Independent.

Mr Graham said he would take a "fierce" approach to overly-secretive authorities. He warned that some public bodies were still "dragging their feet" in complying with the Freedom of Information Act, and said that even Cabinet minutes should not routinely have their release blocked.

In a recent unpublicised case, Mr Graham broke new ground when he threatened a public body, the London Development Agency, with contempt of court proceedings for failing to disclose information under an FOI request. "This will send a shock-wave through the system," he said.

In his first newspaper interview, to mark his first six months in the job, Mr Graham told The Sunday Telegraph: "Shining the spotlight of publicity across a public service is how you find out where money is being wasted."..."I think [in the past} the Information Commissioner's Office [ICO] has not been alert enough and fierce enough with public authorities that do not comply with their requirements under the Freedom of Information [FOI] Act," he said.

"After five years, public authorities should be able to do better. From now on, we will be a rather tougher partner. We will insist on adequate responses within the time limits. I will be up for issuing what are known as 'information notices' [which compel public authorities to supply information to the ICO or they will have committed a criminal offence]. We have not really done this so far but we will from now on."

The Information Commissioner has also sent a firm message to Jack Straw, the Justice Secretary, that he should not routinely veto the release of Cabinet minutes without good cause. This followed Mr Straw's decisions to veto the release of documents relating to a devolution issue from 1997. "The point is that the [FOI] act does not say that all Cabinet papers should be vetoed. The veto is there only for exceptional circumstances," Mr Graham said.

Friday, December 18, 2009

To mark the 25th anniversary of the Campaign for Freedom of Information (it was launched in January 1984), the Campaign has published back issues of its Secrets newspaper which appeared between 1984 and 1993.

The newspapers, which may be of interest to anyone studying the history of freedom of information in the UK, start by describing the position of the party leaders at the time - Neil Kinnock, David Steel, David Owen and the then Prime Minister Margaret Thatcher. They document the secrecy problems that prompted demands for a FOI Act, the progress of various private members' bills promoted by the Campaign, the causes celebre of the time such as the Ponting and Tisdall official secrets prosecutions and the Freedom of Information Awards given to public authorities which voluntarily opened their files to the public without being forced to do so.

The Information Tribunal has dispelled any remaining doubt over whether the cost of redacting exempt information can be taken into account by public authorities when estimating the costs of complying with a request.

This issue had been considered by the Tribunal in Jenkins v IC and Defra (EA/2006/0067), where it expressed the view that the time cost of redacting exempt information could not be counted for the purposes of the Fees Regulations. However, the Jenkins case was determined on the basis of other exemptions and, in any case, the Tribunal said that the issue was not free from doubt.

Section 12 is a good administration constraint. It is a preliminary exercise limited to estimating the costs of the initial mechanical processing of the request for information. Insofar as sequencing is important to the arguments made in this appeal, making the cost estimate under section 12 (to scope the work entailed in order to weed out voluminous and excessively costly requests for information), precedes the separate and more focussed task of responding to those requests for information that fall within the cost limit. ...Second, the common thread running through the Allowable Tasks is that they are of an administrative nature. A public authority which is in receipt of a request has to determine whether it holds the information, it has to locate the information and then to retrieve or extract it. The relative ease with which a public authority can make an advance estimate of the potential costs involved in carrying out these non-judgemental tasks, contrasts markedly with the difficulty that is likely to be involved in estimating how long it would take to decide whether or not any of the exemptions in sections 21 to 44 of the Act apply to some or all of the information requested, and whether the exempt material could be edited so that some part of the information requested could be released....It is also clear from the time limits in the Fees Regulations (18 hours and 24 hours depending on the public authority), that if it covered the time cost of redactions, in addition to the tasks listed in regulation 4(3), many, if not most, requests involving exemptions, particularly multiple exemptions, could be refused. This too, in our view, could not have been the legislative intent.

Prince Charles was tonight facing fresh accusations of meddling in government policy after it emerged that he had written directly to ministers in eight Whitehall departments over the last three years.

The heir to the throne, who has strong views on the environment, farming and architecture, wrote to ministers in departments including the Treasury, Foreign and Commonwealth Office and the education department.

Documents obtained by the Guardian also reveal that his advisers pressed senior cabinet ministers to bring government policy into line with the prince's beliefs on matters including hosp ital building and the design of ecotowns.

The disclosures will fuel growing concern that the prince is continuing to interfere in political matters when many believe he should remain neutral if he wishes to become king.

Leaks of previous correspondence, known among ministers as "black spider memos" because of the prince's sprawling handwriting style, provoked a backlash among politicians furious that an unelected royal was meddling in the affairs of democratic government.

The fresh evidence of his lobbying was obtained using the Freedom of Information Act, although Whitehall departments refused to release the content of the letters. The Guardian has established that since 2006 Charles wrote to politicians leading eight government departments and his advisers wrote to five.

The departments released correspondence from senior aides who run his architectural charity to Hazel Blears, then secretary of state for communities. They show how his charity urged the government to adopt Charles's favoured approach to the ecotowns initiative.

They also wrote to Patricia Hewitt, who was health secretary, to recommend that all hospital trusts planning new buildings should use the design technique pioneered by Charles's architecture charity.

Separately they pressed Andy Burnham, chief secretary to the Treasury at the time, to consider the findings of a study into sustainable ways of increasing the housing supply "which provides support for the [prince's] Foundation's mission to promote timeless and ecological ways of planning, designing and building".

Wednesday, December 16, 2009

The quarterly statistics bulletin on FOI implementation within central government have been published for the period July to September 2009.

Executive summary Departments of State reported receiving 6,208 “non-routine” information requests during the third quarter of 2009 (Q3). Other monitored bodies received 4,389 requests. Across all monitored bodies, a total of 10,597 requests were received, of which 91 per cent had been processed at the time of monitoring. This includes 238 requests handled under the amended Environmental Information Regulations (EIRs) which came into force on 1 January 2005. [see Table 1]

The 10,597 requests across all monitored bodies received in the third quarter of 2009 is 20 per cent greater than the 8,825 received during the corresponding quarter of 2008. [see Table A]

During Q3 of 2009, 86 per cent of all monitored bodies’ requests (excluding those “on hold” or lapsed) were “in time”, in that they were processed within the statutory deadline* or were subject to a permitted deadline extension.

This figure is the same as in the previous quarter but slightly lower than in the corresponding quarter of 2008. [see Table 2 and Table B] Of all “resolvable” requests received during Q3 of 2009 (i.e. requests where it was possible to make a substantive decision on whether to release the information being sought), 55 per cent were granted in full, the same as in the previous quarter but slightly lower than in the corresponding quarter of 2008. [see Table 3 and Table C]

The figures show that Departments of State met the standard 20 working day deadline for 75% of requests, with the Ministry of Defence having the worst record at just 40% (a significant reduction on the 64% achieved in the preceding quarter). Other monitored bodies performed better, with the exception of the Serious Fraud Office, which answered only 38% of the comparatively small number of requests it received within the standard deadline.

The departments that withheld considerably more requests in full than the average were the Cabinet Office (51%) and Ministry of Justice (44%).

Tuesday, December 15, 2009

Gordon Prentice MP opened an adjournment debate on the time taken by the Information Commission to process Freedom of Information requests. The debate was replied to by Michael Wills, Minister of State at the Ministry of Justice.

Mr. Gordon Prentice (Pendle) (Lab): I am very grateful for this opportunity to raise the issue of the processing of freedom of information requests. This concerns the Information Commissioner and how freedom of information requests are dealt with, and it is a very sorry tale. The Information Commissioner enforces and oversees the Data Protection Act 1998, the Freedom of Information Act, the Environmental Information Regulations 2004 and the Privacy and Electronic Communications (EC Directive) Regulations 2003. The span of responsibilities is very wide, but the Information Commissioner's office is simply not coping. There are big issues to address in respect of how the Information Commissioner's office is staffed, managed and resourced. Curiously, its funding comes from the Ministry of Justice, which also provides advice to all Departments on freedom of information cases and issues.

The Information Commissioner's office has a huge backlog of hundreds of cases, which go back to 2005. I have in my hand a copy of the "case load snapshot" that the Information Commissioner published in September. It runs to about 30 closely typed pages, and about 30 to 40 cases are listed on each page. The system is just gumming up. Some of the requests seem fairly trivial. For example, information was requested about the names of individuals holding parliamentary passes from the Association of Former Members of Parliament and the Industry and Parliament Trust; that request goes back 16 months. A request relating to the use of pseudonyms by the Cabinet Office dates back 15 months; another, relating to the royalties paid to the estate of the composer of "Sailing By" on Radio 4 dates back a year. And so the list goes on, page after page.

Mr Prentice raised this issue before in the summer adjournment debate on 21 July 2009 (see earlier blog post). He has now asked Sir Alan Beith MP, who chairs the Justice Committee, to question the Commissioner about the delays.

You can watch a recording of the debate here or read it in Hansard here.

Friday, December 11, 2009

The government has issued a second veto, preventing the disclosure of information under the FOI Act. This follows the veto in February 2009 of cabinet minutes relating to the war in Iraq.

The present case involves a request to see the minutes of the 1997 meetings of the cabinet subcommittee on devolution in Scotland, Wales and the English regions. The committee had been chaired by Lord Irvine, the then Lord Chancellor.

The government withheld the information under the FOI Act exemptions for policy formulation and ministerial communications (section 35(1)(a) and (b)). In June 2009 the Information Commissioner ruled that these should be disclosed. He concluded that the issue was no longer ‘live’ as, by the time of the request in 2005, the policy questions had been settled and devolution had long been introduced in Scotland and Wales. He found that only 1 member of the cabinet committee concerned was still in government. The minutes did not attribute views to any specific minister or offer much insight into the debate or the contributions of individual ministers.

The Commissioner concluded that:

33….he rejects the blanket approach taken by the Cabinet Office which is that disclosure of the minutes, regardless of content is not in the public interest as it would undermine the convention of collective responsibility. Whilst the convention and it [sic] maintenance is one of the public interest factors to be considered, and it is a factor that the Commissioner places much weight upon, it is only one element of the public interest test.

34. In this case, the issues discussed and recorded in the minutes continue to be of significant public interest, but the sensitivity of the specific content has reduced with the passage of time. The Commissioner finds that, on balance, the public interest in maintaining the exemption does not outweigh the public interest in disclosure of the information.

The Iraq veto overruled a decision of the Information Tribunal - this one deals with a decision of the Commissioner. Remarkably, the government had appealed to the Tribunal in this case too: the Tribunal hearing was due to start at the end of January 2010. It is not clear why ministers should change course at such a late stage. If the government had intended to use the veto it could have done so when the Commissioner’s decision was issued, nearly six months ago.

One possibility may be that the government wanted to avoid a Tribunal decision appearing in spring 2010 forcing ministers to disclose or veto the release of the devolution papers just before or during a general election campaign. The actual timing of the veto - announced on the day the House of Commons published a highly contentious batch of MPs’ expenses - is likely to have reduced press coverage of the issue.

Jack Straw, the Justice Secretary and Lord Chancellor, in his statement of reasons for the veto identifies a number of factual disagreements with the Information Commissioner. The Commissioner found that only 1 member of the Cabinet committee was still in government at the time of the request. Mr Straw says that in fact 15 of those who attended committee meetings were ministers when the request was made and 7 of them are still ministers.

He also disagrees with the Commissioner’s view that the policy issues discussed in 1997 are no longer live. He says Welsh devolution was still being considered in 2005 at the time of the request - and led to the Government of Wales Act 2006.

Mr Straw also disagrees with the Commissioner’s view that the papersprovide little insight into individual ministers’ views, observing that the views of a number of individuals, including some current ministers, are attributed to them in the minutes.

If Mr Straw is right, he would have had reason to believe that he would succeed in persuading the Tribunal to overturn the Commissioner’s decision.The failure to allow the Tribunal to examine the issues is all the more surprising.

Mr Straw’s statement also says the veto will only be used on a case by case basis, taking account of all the circumstances and that the government has “no fixed view on when the use of the veto power would be appropriate”.

The relevant factors include whether the papers reveal the substance of policy discussion or just the process, whether the issue was significant at the time and remains so, whether the views of individual ministers are identifiable, whether the ministers are still active in public life and their views on any possible disclosure. That suggests that there may be cases where the government would not veto disclosure of relatively innocuous cabinet material if the Commissioner or Tribunal required it, even it believed the public interest favoured confidentiality.

That position is surely preferable to the proposed blanket exemption for all such papers. The government has said it will introduce a new absolute exemption for cabinet papers (plus a separate absolute exemption for communications with the royal family) as part of a package involving the release of government papers after 20 years instead of the current 30 years.

But if ministers now feel free to exercise the veto - twice in one year, so far - is the new exemption necessary?And if ministers acknowledge that they might permit the release of certain cabinet or cabinet committee papers before 20 years, what is the case for the new exemption ruling out any such disclosure altogether?

Wednesday, December 09, 2009

The Information Tribunal has dismissed an appeal by the University of Central Lancashire against a decision by the Information Commissioner ordering the disclosure of course materials given to undergraduates on the University's BSc in Homeopathic Medicine.

The Tribunal found that the exemption for prejudice to commercial interests in s.43(2) of the FOI Act was engaged, thereby rejecting the Commissioner's view that the interests the University sought to protect were financial but not commercial:

We do not consider that the fundamentally charitable character of a university means that it should have no commercial interests. A body which depends on student fees to remain solvent has a commercial interest in maintaining the assets upon which the recruitment of students depends. Moreover, we accept on the evidence that UCLAN operates in competition with other institutions of higher education in seeking to sell its products, namely undergraduate courses, to potential students.

However, it was not persuaded that disclosure of the information was likely to prejudice to the University's commercial interests:

The starting point is the absence of evidence that disclosure has affected recruitment where it has taken place, though the Tribunal accepts that this has occurred only rarely and partially. More significant, in the case of this course, is the exemption of the body of case histories, without which, it seems to us, the material lacks empirical support. Any competitor would need to obtain such material before a comparable qualification could be offered, which suggests that the “head start” that innovation should earn, ought not to be significantly eroded....It was not clear to us how a competitor could significantly exploit access to this material, without infringing UCLAN `s copyright or brazenly aping the content of a course, which would surely attract the scorn of the wider academic community. Moreover, it seemed to us likely that most potential students would be attracted to a particular course by the reputation of the teaching staff and a range of extra – curricular factors at least as much as by a comparative study of the powerpoint presentations and notes provided to current students.

Although not strictly necessary, the Tribunal nevertheless considered the balance of public interest and found the public interest favoured disclosure of the information:

The public interest in disclosure seems to us appreciably stronger. Apart from the universal arguments about transparency and the improvement of public awareness, we find that there are particular interests here, arising from the nature of a university and the way it is funded.

The University also claimed the information was exempt under s.36(2)(c) on the basis that disclosure would provoke a disruptive volume of requests for comparable material relating to a large number of other courses. The Tribunal found that the opinion of the University's Vice-Chancellor as the qualified person under s.36(2) was neither reasonable in substance nor reasonably arrived at:

We regard the claim of disruption and consequent expense resulting from a flood of similar requests prompted by disclosure of this information as tenuous. Moreover, if such requests were likely, such an argument runs counter to the fundamental philosophy of FOIA, assuming them to be made in good faith. It amounts to saying: if we comply with this request we shall have to comply with a mass of others. ...With great respect to Professor McVicar, whose sincerity is not in question, we can find no adequate evidential basis for this opinion and consider that it rests on two misconceptions as to the application of FOIA. We do not find that it passes the required test of objective reasonableness.

"Responses to a discussion paper which looked at the options for extending coverage of the FOI Act beyond the public sector supported the principle of greater openness. I now intend to formally consult with a range of organisations about whether it is appropriate for them to be covered by FOI.

"It is important that organisations who deliver key public services for the people of Scotland operate transparently so the public can be reassured we are getting high quality services and value for money. I am also sympathetic to the view that people should be able to 'follow' the expenditure of public money through their access to information, in particular in relation to PFI/PPP contracts which tend to be high value and long term.

The Scottish Information Commissioner has welcomed the announcement:

Mr Dunion says "I am pleased that the public's right to information is being protected and in some cases extended by the Scottish Government's proposals to bring bodies like local authority trusts, private prisons and PPP contractors within the scope of the Freedom of Information Act.

I will use the period of consultation to argue that the right to information is not an unreasonable burden. There is no evidence of any material damage to commercial interests or public procurement from FOI disclosures in Scotland over the past 5 years. It needs to be accepted that where substantial sums of public money are being expended then the public should have right to know. Freedom of information should follow the public pound."

Monday, December 07, 2009

The Prime Minister has today (7 December) given a speech on smarter government, promising to make available all public services performance data by 2011:

Information is the key. An informed citizen is a powerful citizen.

We will ensure that people can get access to the information they need to engage in dialogue with public service professionals; and in doing so reduce bureaucratic burdens. This will drive improvements in public services, making them more personal and cost-effective, whilst at the same time strengthening democratic deliberation and giving frontline workers and voluntary organisations the freedom to innovate and respond to new demands in new ways.

We are determined to be among the first governments in the world to open up public information in a way that is far more accessible to the general public.

So I am grateful to Sir Tim Berners-Lee and Professor Nigel Shadbolt for leading a project to ‘make public data public’.

This has enormous potential. Already more than 1,000 active users of the internet have registered their interest in working with government on this, and we have so far made around 1,100 datasets accessible to them.

And there are many hundreds more that can be opened up - not only from central government but also from local councils, the NHS, police and education authorities.

And these must all have the opportunity for feedback and interaction, for that is where power lies for the citizen.

This increased transparency and accountability will enable citizens to compare local services, lobby for improvements, choose providers and demand changes in service delivery - with the web as a powerful new tool for sharing customer experience - in the same way that social networking sites provoke debate and discussion and mobilise opinion. Judgement on public services will no longer be the preserve of anonymous government inspectors....

And I can announce today that we will actively publish all public services performance data online during 2010 completing the process by 2011. Crime data, hospital costs and parts of the national pupil database will go on line in 2010. We will use this data to benchmark the best and the worst and drive better value for money.

It will have a direct effect on how we allocate resources. We will introduce next year NHS tariffs based on best practice on the ground not average price. And we will be benchmarking the whole of the prison and probation system by 2011.

And we will give our frontline services greater freedoms and flexibilities to respond innovatively to this data, reducing the number of ring fenced budgets, rationalising different central funding projects and joining-up capital funding within a local area.

Releasing data can and must unleash the innovation and entrepreneurship at which Britain excels - one of the most powerful forces of change we can harness.

When, for example, figures on London’s most dangerous roads for cyclists were published, an online map detailing where accidents happened was produced almost immediately to help cyclists avoid blackspots and reduce the numbers injured.

And after data on dentists went live, an iphone application was created to show people where the nearest surgery was to their current location.

And from April next year ordnance survey will open up information about administrative boundaries, postcode areas and mid-scale mapping.

All of this will be available for free commercial re-use, enabling people for the first time to take the material and easily turn it into applications, like fix my street or the postcode paper.

And I can further announce today that, again from next April, we will also release public transport data hitherto inaccessible or expensive and release significant underlying data for weather forecasts for free download and re-use.

On the subject of making government data public, the Australian Government 2.0 Taskforce has just released a draft of its report Engage: Getting on with Government 2.0. I haven't read the whole report, but it has an interesting section on how Australia compares internationally in this area. It also sets out the policy in the context of the ongoing programme of FOI reform by the Rudd Government.

Tuesday, December 01, 2009

The Information Commissioner's Office has published a report monitoring central government's adoption and operation of the ICO model publication scheme which came into effect on 1 January 2009.

Some of the report's key findings were:

less than three quarters of the authorities monitored in this sector have adopted the model publication scheme. It is of serious concern to the ICO that eight authorities are in breach of the Freedom of Information Act 2000.

thirteen authorities in the sector have published details of their charging arrangements for routinely available information on their websites, however not all have policies that conform to ICO guidance.

the greatest area of non-compliance with the requirements of the model scheme across the central government sector, with a limited number of exceptions, is in relation to the proactive release of financial information.

the proactive release of information relating to contracts awarded and their value has generally been very poor. Only a very small number of authorities make information available on both.

very few monitored authorities make available any detailed information relating to senior staff allowances and expenses.

only 3 of the authorities monitored in the sector make both the minutes and their associated agendas and papers routinely available. They are the Northern Ireland Assembly, National Assembly of Wales and the Department for International Development. We note with concern that a number of authorities make neither the minutes nor the relevant papers routinely available.

we included the proactive release of an authority’s register of hospitality and gifts in the monitoring exercise as an indicator of their transparency and openness. Whilst we presume that organisations in the sector collate this information for their own purposes, our monitoring revealed a minority make this information proactively available.